The Great Water Heist

The Great Water Heist

Published: Sep 22, 2009 at 7:29 pm

By Jim Jordan

In this well-intended document, protecting clean water is and should be a big priority. The Constitution of Pennsylvania specifies that people have a right to clean water. No one of sound mind can argue against  protecting water, as it should be a priority of every citizen, and this process must be carried out within all other laws of Pennsylvania.

The USDA Forest Service defines a riparian buffer as:

Streams, rivers, lakes, and bays and their adjacent side channels, floodplain, and wetlands. In specific cases, the riparian buffer may also include a portion of the hillslope that directly serves as streamside habitats for wildlife.

To a homeowner with a stream running through his property, ordinances on riparian buffers may present a costly situation from something as simple as mowing weeds. Cutting weeds on a bank could reduce a stream’s filtration characteristics and allow poisons to leach into the waterways. This means that those weeds will need to be replaced, of course under township supervision and with an engineer’s report, thus assuming there are no fines, mowing the wrong weeds could result in hundreds or even thousands of dollars to the homeowner.

This is not a hypothetical situation – if you live in Chester County, your municipality has enacted legislation “protecting” riparian buffers on private property. Every municipality must create a comprehensive plan to outline growth controls as mandated by Chester County via a document called Landscapes. This utopian guide sets priorities which municipalities are instructed to enact through their Planning Commissions. Specifics included in Landscapes are items such as “creating affordable housing” and strict regulations around riparian buffers.

Great Water Heist

Having created a Riparian Buffer ordinance for my municipality I have uncovered many of the legalities of water legislation at the local, state and federal levels. In the quest to “do something”, mandates coming from the county level are little more than feel-good ordinances that put unreasonable restrictions on landowners. Riparian ordinances often end up creating ever larger buffers, so large that a homeowner’s property becomes untouchable, and at the same time not addressing the primary sources of water pollution: agriculture, industry, and waste treatment.

Despite their failings, Planning Commissions are typically representative of and reactive to the will of the people, and if not they are easily replaced. Unfortunately, there is now Federal legislation, introduced on April 2, 2009 by U.S. Senator Russ Feingold allegedly intended to restore protections for waterways throughout the country.  Feingold’s Clean Water Restoration Act (CWRA) would ensure protections for rivers, streams and wetlands, which were long protected under the Clean Water Act (CWA), but are now in jeopardy of losing protections as a result of two recent Supreme Court cases.

Specifically, legislation S. 787, fundamentally changes the definition of “water” under control of the federal government:

The term ‘waters of the United States’ means all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing, to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.

No longer is there a requirement for the waters to be navigable, and includes a vast component of “activities affecting these waters”. This essentially grants vast new control of land, via all waterways and riparian buffers, to the Federal government. Ominously, the entire text of S787 has no mention whatsoever of “just compensation”, meaning that the Federal government will be able to dismantle use of land without the consequence of paying for it. This is perhaps the greatest heist ever conceived by government, turning over perhaps our most precious asset to the special interests controlling Washington DC.

We are already burdened by state and local ordinances, often passed with little or no awareness by those affected. The proposed CWRA adds a Federal component to this already tricky area. It is a matter of our inherent right through the Pennsylvania Constitution, yet that document is constrained by the other rights it specifies and laws it establishes. As we continually and typically see from our Federal government, they are not so constrained. We ignore this legislation at our own peril.